Can an association exist and legally act without a constitution?
September 5, 2023 | 40,00 EUR | answered by Emilia Vöss
Dear lawyer specialized in association law,
My name is Franceska Beck and I am an active member of an association that currently does not have any statutes. The founding members established the association a few years ago to work together for a good cause. However, no statutes have been written so far to regulate the legal basis for the association's activities.
The association currently exists only on an informal basis, without defined structures or rules. This worries me because I fear that this could lead to legal issues. For example, I am questioning whether the association, without statutes, is legally capable of taking action and entering into contracts. The issue of liability and the authority of the board of directors is also unclear to me.
As a member of the association, I would like to actively participate and take on responsibility. I would like to know the best course of action for us as an association to create a legally secure foundation. Is it possible to retrospectively draft statutes and make them effective? Or should we possibly consider re-establishing the association to ensure that everything is done correctly from the start?
I would greatly appreciate it if you could provide me with your assessment of this situation and suggest possible solutions. I want to ensure that the association acts legally correctly and can exist in the long term.
Thank you in advance for your support.
Sincerely,
Franceska Beck
Dear Mrs. Beck,
Thank you for your inquiry regarding the missing articles of association of your association. It is understandable that you are concerned about the legal situation of the association and would like to establish a clear legal basis to avoid potential problems.
First of all, it should be noted that an association can exist even without a written articles of association. However, I strongly recommend drafting articles of association, as they form the basis for the legal and organizational structure of the association. The articles of association specify the purposes of the association, the rights and duties of the members, the composition and powers of the board, decision-making and representation rules, as well as other important provisions.
It is possible to draft and make articles of association effective retroactively. In your case, it would be advisable to work together with the other members of the association to develop articles of association that cover all relevant points and comply with the requirements of association law. It is recommended to seek advice from an experienced lawyer specializing in association law to ensure that the articles of association are legally sound.
Starting the association anew would generally not be necessary unless there is a desire to fundamentally change the structure or content of the association. In most cases, it is sufficient to draft articles of association and have them approved by the general assembly.
To ensure that the association acts legally and can exist in the long term, I strongly recommend drafting and making the articles of association effective. If you have any further questions or need assistance with the drafting of the articles of association, I am happy to help.
I hope that my response is helpful to you and wish you success in legally securing your association.
Sincerely,
Emilia Vöss, Lawyer specializing in association law
